Ethical Dilemmas In A Post 9/11 World

In an era of heightened security following the attacks in New York and Washington DC on September 2001, immigration lawyers often represent clients who are subject to measures that selectively enforce against nationals of certain countries. As a result, they face new ethical challenges in representing clients subjected to such measures.

The most controversial measure was the Call-In Special Registration program that required all males over a certain age from countries with suspected terrorist ties to register with the Department of Homeland Security. The new procedures applied to males who came into the country as nonimmigrants before certain cut-off dates. Over 80,000 reportedly registered from countries with mainly Islamic populations, as follows: Iran, Iraq, Sudan, Libya, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan and Kuwait.1 More than 13,000 with immigration violations who reported for registration have been placed in removal proceedings.2

This advisory will use the example of Call-In Registration and other similar initiatives to point out some of the ethical issues that immigration lawyers have faced when representing a client subject to post-9/11 security measures. The writer will rely on both the ABA's Model Rules of Professional Conduct (MRPC) and the New York Code of Professional Responsibility (NYCPR). The NYCPR comprises nine Cannons that state general principles. Each Cannon begins with several Ethical Considerations that are "aspirational," followed by Disciplinary Rules, which are "mandatory."

To Register Or Not To Register

Lawyers representing clients subject to Call In Special Registration were truly subject to a dilemma in advising a client who was out of status to register or not.

The risks of registering were as follows:

The DHS (formerly INS) would ask the client many questions, not only concerning his immigration status, but also on his3 job, living situation, religious practices, family, friends and acquaintances;

there was a risk of the DHS arresting and detaining him;

DHS would almost always issue a Notice to Appear and begin removal proceedings; and

A willful failure to register would make the client deportable for failure to maintain nonimmigrant status unless the failure to register was found to be "reasonably excusable,"

there was also the concern that failure to register may be used by the DHS or an Immigration Judge in future as a negative discretionary factor in granting discretionary relief such as Adjustment of Status or Cancellation of Removal; and

INA § 266(a) provides for penalties for willful failure or refusal to register

If the out of status client could have presented an application for immediate relief in removal proceedings, it was easier for the attorney to persuade the client to register. Even though the client may have been placed in removal proceedings, the relief that he would have presented (e.g. cancellation of removal, asylum or adjustment of status) may have been able to terminate removal proceedings and enable him to apply for lawful permanent residency.

It was much harder for an attorney to advise a client to register,
especially at DHS offices where registrants were being arrested even
though they had pending applications for adjustment of status. Peter
Schey, an attorney with the Center for Human Rights and Constitutional
Law in Los Angeles who represents several immigrants, said, "(i)n light
of the mass, warrantless arrests, which we believe to be illegal, it is
difficult for us to recommend, in good faith, for people to come forward
and register".4

A lawyer is under a duty to act zealously. According to Rule 1.3 of the MRPC, "A lawyer shall act with reasonable diligence and promptness in representing a client." Comment 1 to Rule 1.1 provides, " A lawyer should …take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf…"

Cannon 7 of the NYCPR enjoins a lawyer to zealously represent his or her client within the bounds of the law. Under MRPC, Rule 1.2(d), " A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent.." Under NYCPR Disciplinary Rule (DR) 7-102(A)(7), a lawyer shall not counsel or assist the client in conduct that the lawyer knows to be illegal or fraudulent."

Since willful failure to register subjects a noncitizen to a misdemeanor punishable by imprisonment of not more than six months or a fine not to exceed $1,000,5 a lawyer would be hard pressed to advise a client not to register however unfair or unjust the result. A lawyer, on the other hand, may advise the client of relevant legal and non-legal considerations regarding the registration process, and leave it ultimately for the client to decide whether to register or not.6

Ethical Consideration (EC) 8-2 of the NYCPR is worth noting:

"Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, the lawyer should endeavor by lawful means to obtain appropriate changes in the law. The lawyer should encourage the simplification of laws and the repeal or amendment of laws that are outmoded. Likewise, legal procedures should be improved whenever experience indicates a change is needed."

Ethical Issues In Removal Proceedings

After carefully considering the attorney's advice, the client decided to register and was placed in removal proceedings. The client has no relief whatsoever, but now expects the lawyer to mount whatever defense is necessary in removal proceedings to enable him to stay as long as necessary in the US for a potential immigration benefit to materialize in the future.

Practitioners are well advised to take note of rules governing practice before the immigration court pursuant to 8 C.F.R. § 1003.101. The rules provide, inter alia, that a practitioner who engages in frivolous behavior in proceedings before an immigration court or the Board of Immigration Appeals may be sanctioned.7 Frivolous behavior is defined as follows:

"A practitioner engages in frivolous behavior when he or she knows or reasonably should have known that his or her actions lack an arguable basis in law or in fact, or are taken for an improper purpose, such as to harass or to cause unnecessary delay. Actions that, if taken improperly, may be subject to disciplinary sanctions include, but are not limited to, the making of an argument on any factual or legal question, the submission of an application for discretionary relief, the filing of a motion, or the filing of an appeal. The signature of a practitioner on any filing, application, motion, appeal, brief, or other document constitutes certification by the signer that the signer has read the filing, application, motion, appeal, brief, or other document and that, to the best of the signer's knowledge, information, and belief, formed after inquiry reasonable under the circumstances, the document is well-grounded in fact and is warranted by existing law or by a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, and is not interposed for any improper purpose."8

Rule 3.1 of the MRPC states:

"A lawyer shall not bring or defend a proceeding, or asserts or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established."

While a lawyer is under a duty not to abuse legal procedure, the Comment 1 to Rule 3.1 asserts that the advocate also has "a duty to use legal procedure for the fullest benefit of the client's cause." Comment 2 goes on to state that the "filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not been substantiated or because the lawyer expects to develop vital evidence only by discovery…Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail."

Thus, it would not be frivolous if a lawyer contests deportability by advising a client to not admit that he is a noncitizen. The government bears the burden to prove that the respondent is a noncitizen for immigration court matter jurisdiction.9 The lawyer may also justifiably move to delay hearings until he or she has been able to obtain documentary or testimonial evidence of the government's potential violations under 8 CFR § 287.3, which set forth safeguards when arresting an alien without a warrant.

It should also not be frivolous for a lawyer to move to terminate removal proceeding on the basis that Special Call-In Registration violates the Fifth Amendment of the U.S. Constitution because it creates an impermissible nationality-based distinction and is not tailored to achieve the desired result because it is both under inclusive and over inclusive. Even though an Immigration Judge may not have jurisdiction to entertain a constituted defense, the lawyer must still raise it to preserve the defense when the matter is appealed to the federal courts. A lawyer may also argue that the government's actions constitute impermissible selective enforcement. The Supreme Court left open the possibility that selective enforcement claims could be asserted in an individual's deportation case, although no absolute right to assert such claims exists. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999).

Suppose the client's motion to terminate proceedings under the above novel arguments are rejected by the Immigration Judge, and if found deportable, the only way the client can prevent deportation is to file an application for relief. The client advises the lawyer that he realizes he would face persecution if sent back to his native country. The lawyer after examining the client's factual situation recommends that he may file an asylum claim. After preparing the application, the lawyer finds out about the falsity of the client's claim.

Under MRPC Rule 3.3, the lawyer is required to exercise candor before the tribunal. A lawyer cannot offer evidence that he or she knows to be false. If the lawyer comes to know of its falsity later, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. Such measures would include remonstrating with the client and seeking the client's cooperation with respect to withdrawing or correcting the false statement or evidence.10 The latest amendments to the MRPC frown upon a lawyer's withdrawal from representation as a remedial measure. Withdrawal would not undo the effect of the false evidence. The tribunal may also not permit the attorney to withdraw, and in such a case, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so would requires the lawyer to reveal information that is treated as confidential under Rule 1.6.11
DR 7-102(B) of the NYCPR follows Rule 3.3, requiring the lawyer to rectify any fraud perpetrated upon the tribunal, "and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret." The only distinction between the New York rule and Rule 3.3 is that a lawyer is not permitted to reveal the fraud if it is "protected as a confidence or secret." Hence, the exception appears to swallow the rule in New York! Cf. People v. DePallo, 96 N.Y.2d 437 (2001) (when a defendant in criminal trial insisted on testifying and committing perjury, defense counsel properly notified court and this approach was consistent with DR 7-102(B)(1)).

Representing the Deported Client

At the conclusion of the deportation hearing, an Immigration Judge may offer voluntary departure to the client in lieu of removal order. It would be prudent for the lawyer to advise the client not to accept voluntary departure if the client is certain that he or she will not depart the US voluntarily within the stipulated period. Apart from ethical considerations, a client's failure to voluntarily depart the US within the time period specified will subject him or her to civil monetary penalties as well as to ineligibility for ten years for any relief such as adjustment of status, cancellation of removal, change of nonimmigrant classification and registry.12

If a client has received a final order of removal and has not left the US or willfully fails or refuses to present himself or herself for removal at the time and place required by the Attorney General, INA § 243 renders such conduct a criminal felony with imprisonment of not more than four years (or ten years if the person is deportable under the smuggling criminal offence or criminal/falsification of documents grounds).

Out of more than 300,000 foreign nationals who have remained in this country following a deportation order, the Justice Department under the Absconders Program has prioritized the deportation of 6,000 non-citizens from countries where Al Qaeda support is strong.13 If a client asks a lawyer who is subject to this initiative as to whether he or she should change his or her address or identity to evade the authorities, the lawyer should pay heed to §243 as well as NYCPR DR 7-102(A)(7) – "a lawyer shall not counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." On the other hand, the lawyer should examine all possible avenues that might enable the client to reopen deportation proceedings as well as apply for waivers or even permission to reenter the country prior to the statutory bar against reentry following a removal order.14 A discussion of these strategies is beyond the scope of this article.

Criminal Law Ramifications

The immigration attorney has to be careful of criminal liabilities to be incurred under the following provisions:

8 U.S.C. § 1001(a)(1)-(3). Criminal liability can be imposed on any attorney who knowingly and willfully makes any materially false, fictitious or fraudulent statement or representation in an application or petition or in any supporting statement of affidavit or who makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry in connection with an application for an immigration benefit.

INA § 274C(e)[8 U.S.C. § 1324c(e)]. An immigration attorney may incur criminal penalties for failing to disclose his/her role in preparing an application, which was falsely made.

8 U.S.C. § 1546. Criminal liability may be imposed on an attorney who knowingly forges, counterfeits, alters or falsely makes any immigration document used to obtain entry into the US or as evidence of authorization to remain in the US or for employment in the US.

INA §274C(a) [8 U.S.C. § 1324c(a)]. This section also imposes civil penalties for instances of document fraud and immigration benefit fraud. The law expanded the concept of "falsely making" to include false statements or misrepresentations on genuine immigration documents.

INA § 245A(c)(6) [8 U.S.C. §1255a(c)(6)]. This provision imposes criminal penalties on persons (including attorneys) who knowingly file a fraudulent application for adjustment of status under the legalization program, which would include applications pursuant to late legalization filings under the LIFE Act.

i) Obstruction

Moreover, in a post-9/11 world, clients in immigration proceedings can also be investigated by a grand jury. Therefore, lawyers must beware of the obstruction of justice provisions founded in 8 U.S.C. §§1503, 1505, 1512 and 1513. These provisions make it criminal to "corruptly or by threat of force, or by any threatening letter or communication, influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice." 8 U.S.C. § 1503.

A § 1503 offense requires:

nexus with a pending federal judicial proceedings;

that defendant knew of or had notice about the proceeding; and

that the defendant acted corruptly with intent to obstruct or interfere with the proceeding or due administration of justice.

The intent element of a § 1503 offense is interpreted broadly. It is satisfied if the government shows that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result. See United States v. Cueto, 151 F.3d 620 (7th Cir. 1998), cert. denied, 526 U.S. 1016 (1999) (emphasis added) (upheld lawyer's conviction for conspiracy and obstruction of justice for using court processes to interfere with a federal investigation of the illegal gambling operations; "the government only has to establish that the defendant should have reasonably seen that the natural and probable consequences of his acts was the obstruction of justice"). Under the reasonably foreseeable test, even a subtle suggestion from an attorney to a client can qualify as an obstruction of justice. For example, in United States v. Trankakos, 911 F.2d 1422, 1431 (10th Cir. 1990), the court affirmed a conviction of a defense attorney, who, during a grand jury testimony, smiled at his client and asked suggestive questions, such as "You don't have any bank accounts in Montana, do you?" The Court held, "One who proposes to another that the other lie in a judicial proceeding is guilty of obstructing justice . . . The statute [§ 1503] prohibits elliptical suggestions as much as it does direct commands." Id at 1432. Thus, if an attorney leads his/her client to falsely testify, he/she may be convicted of obstructing justice.

ii) Conspiracy

Immigration attorneys need also be aware that they can be convicted of criminal conspiracy if it can be shown that they remained deliberately ignorant of their clients' illegal objectives. This deliberate ignorance, or "conscious avoidance[,] occurs when a person deliberately closes his eyes to avoid having knowledge of what would otherwise be obvious to him." United States v. Reyes, 302 F. 3d 48 (2d Cir. 2002). The "conscious avoidance" doctrine is often invoked by the prosecution to show that a person had knowledge of an illegal conspiracy. It cannot be used, however, to show that a person intended to participate in a conspiracy. Id.

Immigration lawyers have been successfully prosecuted for conspiracy under the "conscious avoidance" doctrine. See U.S. v. Abrams, 427 F.2d 86 (2d Cir. 1970) (although attorney may not have been specifically aware of his client's plan for departure, jury could have found that attorney has acted with reckless disregard of whether statements in an affidavit supporting extension application were true and acted with a conscious purpose to avoid learning the truth); U.S. v. Sarantos, 455 F. 2d 877 (2nd Cir. 1972) (rejecting Mr. Sarantos' contention that an attorney must investigate "the truth of his client's assertions" or risk going to jail, the Court stated that any attorney should not counsel others to make statements in the face of obvious indications of which he is aware that those assertions are not true).15

The Second Circuit case of US v. Sheldon Walker,16 is worth noting. Walker operated a small immigration law office in New York City. His practice attracted a number of clients who came seeking assistance in procuring asylum and accompanying work permits in the US. Walker also used interpreters in many languages to service his clients. After examining and comparing the numerous applications it received from Walker's office, the INS discovered that many were substantially identical. Walker and his employees were indicted for conspiracy to submit false statements and to commit mail fraud.

Walker and his employee Khan challenged their convictions and sentences on a number of fronts, but noteworthy was Walker's contention that the jury should not have received a "conscious avoidance" instruction. The Court held that a "conscious avoidance" instruction is appropriate when a defendant claims to lack some specific aspect of knowledge necessary to conviction but where the evidence may be construed as deliberate ignorance. Walker argued that responsibility for any false applications rested solely with his employees, and that he knew nothing of their wrongdoing. The Court noted that evidence was introduced to prove that Walker supervised his employees and occasionally reviewed their completed applications. He also instructed a client to sign blank forms that later contained a false account of persecution. According to the Court, this and other evidence easily supported the inference that even if Walker did not have direct knowledge of the crimes occurring in his office, he deliberately remained ignorant of them.

Erosion of Attorney-Client Confidentiality

Note a post 9/11 rule of the DOJ that would permit the monitoring of attorney-client communications including mail where, based upon information from the head of a federal law enforcement or intelligence agency, the Attorney General believes that "reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism."17 The rule also provides that unless there is prior court authorization, written notice must be given to the attorney and inmate the reason for the monitoring and that the conversations are not protected by the attorney-client privilege.18

A well-known New York lawyer Lynne F. Stewart was indicted for allegedly supporting terrorism by helping Sheikh Omar Abdel Rahman direct terrorist operations in Egypt. Mr. Rahman was convicted of plotting to blow up New York landmarks and was imprisoned for life. Prior to the new rule, the Bureau of Prisons, pursuant to 28 CFR § 501.3, imposed certain administrative measures on Mr. Rahman including a prohibition "from passing or receiving any written or recorded communications to or from any other inmate, visitor, attorney, or anyone else." Ms. Stewart was indicted for making false statements and conspiring to defraud the United States for violating the terms of the restrictions imposed on Mr. Rahman pursuant to 18 USC § 1001. She was also indicted for providing material support to terrorism by helping Mr. Rahman pass messages to the Islamic Group, a terrorist organization under 18 USC § 2339B.19

The government's right to monitor such communications without notice to the attorney and client was challenged in United States v. Abdel Sitar et al, 2002 WL 1836755 (S.D.N.Y., Aug. 12, 2002). The court ruled that the defendant was not entitled to assurances that the federal government would not monitor their conversations with their lawyers while they were in prison. Judge Koeltl found "no authority for the proposition that a bare fear of surveillance, without more, is sufficient to establish a constitutional requirement that the government disclose whether it is engaging in any court-authorized surveillance of a criminal defendant under Title III of the Foreign Intelligence Surveillance Act." Also rejected was Ms. Stewart's argument that even the possibility that conversations with her attorney were being monitored compromised her Sixth Amendment right to effective assistance of counsel.

On July 22, 2002, the terrorism charges against Ms. Stewart and a translator were dismissed on the ground that they were unconstitutionally vague. "The government fails to explain how a lawyer, acting as an agent of her client" who is an alleged leader of a terrorist organization "could avoid being subject to criminal prosecution as a ‘quasi employee,'" according to Judge Koeltl.20 The charges that accuse her of making false statements still stand.

While almost every client that an immigration lawyer encounters has nothing to do with terrorism, there might be that rare instance when a client may reveal to the lawyer an intent to commit an act of terrorism. What is the lawyer's obligation with respect to the confidentiality of information between an attorney and client?

Rule 1.6 of the MRPC prohibits a lawyer from revealing information relating to the representation of a client, but a lawyer "may" reveal this information "to the extent the lawyer reasonably believes necessary…to prevent reasonably certain death or substantial body harm."21 At the time of submission of this article, the ABA adopted a resolution that would broaden the scope of this exception to permit a lawyer to disclose confidences to prevent or to mitigate "injury to the financial interests or property of another."22

According to Comment 6 to Rule 1.6, "Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take necessary action necessary to eliminate the threat."

The NYCPR exception to the rule of maintaining client confidences is much broader than the MRPC. DR 4-101(C)(3) permits a lawyer to reveal "the intention of a client to commit a crime and the information necessary to prevent the crime." Thus, unlike Rule 1.6 of the MRPC, a lawyer may breach client confidences even if the client's intention to commit a crime is likely to cause minor physical harm. Or for that matter, a New York lawyer may breach client confidences with respect to any crime, from a traffic violation to mass murder, that the client intends to commit. The lawyer, however, may only reveal information that is "necessary" to thwart the crime.23

Both the MRPC and New York exceptions do not impose a mandatory duty on the part of the lawyer to disclose the client's intention to commit a crime. It is entirely within the discretion of the lawyer to disclose information to whomever the lawyer believes is best able to prevent the crime – or not at all. It is likely, though, in a climate of fear caused by terrorism coupled with distrust due to the recent financial scandals, that courts may impose such a duty as it has done with other processionals. See eg. Tarasof v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (therapist was held liable for failing to warn an intended victim who was unaware that the therapist's patient intended to harm her).

While the New York rule is broader than the MRPC's, the usage of the word "intention" in DR 4-101(C)(3) limits its application only to future conduct unless the conduct is ongoing so that it constitutes an intention to commit the crime in the future. Thus, a lawyer may still be able to reveal the past crime of a client, such as discharging a toxic substance in the town's water supply system, if this information will enable the authorities to prevent people from drinking the water that would surely have subjected them to contract a life threatening or debilitating disease.

11Id. Rule 1.6 of the MRPC prohibits disclosure of information relating to the representation of the client unless it falls under narrow exceptions. See, infra, for a further discussion on exceptions to confidentiality.

14 In the criminal context, a lawyer may represent a client who is currently a fugitive sought on criminal charges "provided that the lawyer does nothing to aid the client to escape prosecution or to further some other illegal act." New York City Bar Opinion 1999-02 (1999), available at www.abcny.org.

22 Jonathan D. Glater, Lawyers Pressed To Give Up Ground On Client Secrets, New York Times, August 11, 2003.

23 Simon's New York Code of Professional Responsibility, 2003 Edition, pp. 431-432.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.